District of Columbia v. Heller and McDonald v. Chicago, the two recent Supreme Court gun cases, resolved a lot of conflicts, but they left a lot of work to be done. Local, state, and federal governments may no longer ban handguns, but they have to decide among other forms of gun control — with the threat of being overruled in court if they go too far. In Gunfight, constitutional-law professor Adam Winkler tells the story of the Second Amendment and makes the case that the Supreme Court did the right thing, both by protecting an individual right to bear arms and by leaving many forms of gun control on the table. Some topics deserve more discussion than they receive, the book’s whiplash-inducing lack of organization is frustrating, and an anti-gun bias is evident in places, but on the whole, Gunfight offers readers a concise and balanced account of where the American gun debate stands and how it got there.
Over the course of several decades in the middle of the 20th century, gun-control advocates managed to plant a great fiction in the mind of the American public: the idea that the Second Amendment protects only a “collective right” — the right of states to form militias — despite its unambiguous declaration that the right belongs to “the people.” Even numerous appellate courts, trying to construe a poorly written Supreme Court decision from the 1930s, adopted this interpretation. But by the time the Supreme Court heard its recent cases, this theory was dead; even the defenders of gun control made little use of it.
As Winkler explains, historical research had simply made this idea untenable. At the time of the founding, various sources — including commentators and Second Amendment precursors in state constitutions — made it perfectly clear that the Second Amendment protected an individual right, even if the main purpose of that right was to stop the federal government from disarming members of state militias. And Winkler traces the right to bear arms even farther back than that, noting that the English Bill of Rights protected individual gun ownership (at least for Protestants).
Winkler spends little time, however, on an alternative theory that developed: the “limited individual right” interpretation that was championed by numerous historians and other academics, and that animated the liberal judges’ dissent in Heller, the first of the two recent cases. In this interpretation, the right to bear arms is somewhat like the right to serve on a jury — it’s a right retained by individual people, but it’s merely a right to be considered for government service, in this case the militia. Winkler outlines the basics of this argument and notes that its proponents are a distinct minority, but more detail would have been helpful.
However, Winkler does a fantastic job of explaining how the Heller case — a challenge to Washington, D.C.’s handgun ban — made it to the Supreme Court. He interviews all of the participants and explains all of the tactical maneuvering and infighting on both sides. (The National Rifle Association opposed the suit, preferring to wait until the Supreme Court was more conservative; some gun-control supporters similarly urged D.C. not to appeal the case to the Court, fearing an adverse ruling.) He also gives a play-by-play of the arguments before the Court, right down to Clarence Thomas’s silence and Antonin Scalia’s openly helping the pro-gun lawyer, Alan Gura, argue his case. (“You want to say, ‘Yes.’ That’s your answer.”)
Winkler’s most valuable contributions, though, are his explorations of what the right to bear arms means in a post-Heller and post-McDonald world. As he points out, the fact that the Supreme Court has taken handgun bans off the table should not only quell the fears of gun-rights hardliners, but also cool the jets of the most extreme gun-grabbers. Thus are both sides pushed toward the middle, and forced to consider the more reasonable measures that are still on the table — and rightly so, constitutionally speaking.
As Winkler explains, gun control is much more a part of American history than some may realize — and he isn’t afraid to explore the dark side of gun control’s past. From the nation’s founding, despite the Second Amendment and similar provisions in state constitutions, state and local governments passed various laws restricting gun rights — from banning concealed carry, to limiting how ammunition might be stored, to confiscating privately owned guns for militia use. Few observers alleged that these provisions violated the right to bear arms. And in the South, governments and private militias went to great lengths to disarm blacks — a problem that helped give rise to the Fourteenth Amendment, which applied the Second Amendment to the states.